Scot Nats face Information Tribunal high noon

In March the SNP appears before the data protection law adjudication body, the Information Tribunal. All indications are that on trial will be a cold calling campaign before the last general election. Did a pre-recorded message from Sean Connery breach telemarketing regulations?

Topic: Telemarketing

Who: The Scottish Nationalist Party and the Information Commissioner's Office

Where: The Information Tribunal

When: March 2006

What happened:

From the Information Commissioner's Office website, it is clear that in March 2006 an important case is likely to appear before the Information Tribunal. In probably the first case of its kind, the Tribunal looks odds on to deal with the question of whether a telephone marketing campaign by the SNP before the 2005 General Election breached the Privacy & Electronic Communications (EC Directive) Regulations 2003 ("2003 Regs").

The campaign consisted of cold calls being made by automated diallers to thousands of Scottish households. When the recipient picked up the telephone a 35 second pre-recorded message began "Hello there. This is Sean Connery. No, it's not a joke – unfortunately the real joke is the Labour party".

The call went on to proclaim that the SNP was "the most trustworthy political party of them all" and urged recipients to vote for them.

The Liberal Democrats complained to the Information Commissioner, Richard Thomas. They said that without prior consent of recipients, the calls were breaking the law.

They would appear to have a point. Regulation 19 of the 2003 Regs states at paragraph 1:

"A person shall neither transmit, nor instigate the transmission of, communications comprising recorded matter for direct marketing purposes by means of an automated calling system except in the circumstances referred to in paragraph (2)".

Regulation 19(2) states:

"Those circumstances are where the called line is that of a subscriber who has previously notified the caller that for the time being he consents to such communications being sent by, or at the instigation of, the caller on that line".

This means that if Mr Connery's friendly call was for "direct marketing" purposes, each call required the prior consent of the recipient.

There is no statutory definition of "direct marketing" in UK legislation, but the Information Commissioner's Office has made it plain that it regards activity seeking to drum up support for a political party as direct marketing. However the ICO's view on these matters is not law and it may be that the SNP is seeking to challenge this interpretation of the relevant regulation. All will be revealed once the case has come before the Information Tribunal, unless of course the matter is settled beforehand.

Why this matters:

It is high time the ICO brought a marketer publicly to book for breaking the 2003 Regs. Of course it may be that the SNP has a perfectly good defence, but for the ICO to be seen to take a telemarketer all the way to the Tribunal will do an awful lot to persuade marketers to take seriously the 2003 Regs and other data protection laws affecting marketing.